Boston Bomber Sentencing: Hank Brennan, Boston Legal Scholar, Explains the Death Penalty Phase

AddThis Social Bookmark Button

Dzhokhar Tsarnaev is set to begin the sentencing phase of his trial. To understand the jury's responsibilities, Hank Brennan, former Boston prosecutor and current defense attorney in the appeal for notorious mobster James "Whitey" Bulger agreed to explain.

Federal Death Penalty Act

The next phase of the United States v. Dzhokhar Tsarnaev trial is what is commonly called the "death penalty phase." In Federal Court the procedure has been codified and is known as the Federal Death Penalty Act (FDPA). This statue can be found at U.S. Code Title 18, Part II c.228.  

The jury will consider both aggravating and mitigating circumstances relative to the qualifying convictions.

A qualifying conviction is an indictment (often called a charge) that the defendant was found guilty for which qualifies for the penalty of death. Not all convictions qualify for the death penalty.  

The prosecution will call witnesses, primarily victims or family members of victims.  The witnesses have an opportunity to emote and may testify to the impact inflicted upon them by the defendant's acts or they may read pre-written impact statements describing the physical, emotional, and financial impact caused by the defendant's crimes.

The defense may also introduce witnesses to attempt to demonstrate any relevant mitigating factor on behalf of the defendant. After considering the evidence the jury decides whether death should be imposed. If the jury chooses that death should not be imposed, the judge will impose a sentence that will inevitably be a life sentence without parole.  

Aggravating and Mitigating Factors

Aggravating and Mitigating Factors are found in U.S. Code Title 18, Part II c.228  § 3592.

Mitigating factors include impaired capacity, duress, being a minor participant, no prior criminal record, equally or more culpable co-defendant, and other factors including the defendant's past character.  

Aggravating factors are numerous and include whether death occurred during the commission of another crime, a grave risk of death to additional persons, if the offense was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim, substantial planning and premeditation to cause the death of a person or commit an act of terrorism, the particular vulnerability of the victim due to old age, youth, or infirmity, and whether the defendant intentionally killed or attempted to kill more than one person in a single criminal episode.

Jury Determines Aggravating and Mitigating Factors

The jury's must return special finding identifying any aggravating factors. All jurors must unanimously agree for any aggravating factor to be deemed established.

A finding of any mitigating factor, however, may be made by 1 or more members of the jury. Upon a finding of a mitigating factor by at least one member of the jury, the factor is deemed established.

The jury will consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. The jury will then recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

A recommendation to sentence to death must be by a unanimous vote.


Haute Tease

  • Romney's Recovery - Road to the White House -Election 2012 - Week Nine

    AddThis Social Bookmark Button

    Republican Presidential hopeful Mitt Romney has once again regained the front runner position, over challenger Rick Santorum, with a week of win’s leading into Super Tuesday’s ten state contest.

  • 11 Tons of Cocaine Seized; Undercover NYC Sting Nabs FOX Producer; HuffPo Blogger; Chipotle CMO

    AddThis Social Bookmark Button

    A three nation joint task force comprised of American, Italian and Colombian law enforcement have seized 11 tons of cocaine and arrested 33 people in a mafia-linked drug ring in the jungles of Colombia, South America.

  • AFI Conservatory Alumni Awards Season Update

    AddThis Social Bookmark Button

    With the awards season now in its final weeks, the American Film Institute is proud to share the most recent honors and accomplishments of AFI Conservatory alumni including major wins from BAFTA, Sundance, WGA and more.  

  • Twentieth Century Fox’s LOVE, SIMON Will Debut In Theaters For One Night Only On Saturday, March 10 Ahead Of Its Official March 16 Release

    AddThis Social Bookmark Button

    Greg Berlanti's film follows the story of Simon Spier (Nick Robinson), a teenage boy who has to come out to his friends and family while also trying to uncover the identity of his anonymous crush, has already garnered near universal critical and social acclaim.

  • The Academy Presents “An Animation Showcase: From Celluloid to CGI” In New York

    AddThis Social Bookmark Button

    The Academy of Motion Picture Arts and Sciences will present “An Animation Showcase: From Celluloid to CGI,” featuring a panel discussion with LAIKA and a sneak peek of Disney-Pixar’s “Inside Out,” running from April 24 – May 29, 2015, in New York. 

  • Republican National Convention Announces Program Changes; Criticized After Storm Fizzles

    AddThis Social Bookmark Button

    The Republican National Convention officially began its full program today after Tropical Storm Isaac passed due west sparing Tampa Bay a full force hit.

  • Academy Launches Its First Digital Video Series

    AddThis Social Bookmark Button

    Beverly Hills, CA – The Academy launches a new digital documentary-style video series, "Academy Originals," which examines everything from the creative process, to the moments that changed the course of filmmaking, to the artists who are charting its future.